Bill Text: NJ S242 | 2010-2011 | Regular Session | Introduced
Bill Title: Defines exclusionary zoning for purposes of New Jersey constitutional obligation.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2010-01-12 - Introduced in the Senate, Referred to Senate Community and Urban Affairs Committee [S242 Detail]
Download: New_Jersey-2010-S242-Introduced.html
STATE OF NEW JERSEY
214th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Sponsored by:
Senator CHRISTOPHER "KIP" BATEMAN
District 16 (Morris and Somerset)
Senator SEAN T. KEAN
District 11 (Monmouth)
SYNOPSIS
Defines exclusionary zoning for purposes of New Jersey constitutional obligation.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning prohibited land use practices by municipalities, and supplementing P.L.1985, c.222 (C.52:27D-301 et al.).
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. The Legislature finds and declares:
a. The New Jersey Supreme Court, through its rulings in South Burlington County NAACP v. Mount Laurel, 67 N.J. 151 (1975) and South Burlington County NAACP v. Mount Laurel, 92 N.J. 158 (1983), has determined that every municipality in a growth area has a constitutional obligation to provide through its land use regulations a realistic opportunity for a fair share of its region's present and prospective needs for housing for low and moderate income families. The Legislature adopted the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.) in response to these decisions. The clear and recurring theme of the Fair Housing Act is its recognition and implementation of the requirement that municipalities must provide through their zoning ordinances a realistic opportunity to satisfy their fair share of their region's present and prospective need for low- and moderate-income housing.
b. The Fair Housing Act creates a State entity, the Council on Affordable Housing, to have oversight of voluntary compliance by municipalities with the constitutional obligation. The statutory scheme relies on builders to construct low and moderate income housing, and assumes that if sufficient incentives are provided to such builders, through positive land use practices, the affordable housing will be constructed. The council is permitted to adopt regulations to establish additional mechanisms that may be employed by municipalities in meeting their fair share obligations. The Fair Housing Act specifically provides that municipalities need not raise or expend municipal resources in order to comply with the act.
c. The Council on Affordable Housing is charged under the Fair Housing Act to provide projections of regional affordable housing need, and must administer and supervise the execution of affordable housing plans of those municipalities that voluntarily petition to be subject to the council's jurisdiction. Although there has been relatively little change to the Fair Housing Act, the regulations adopted by the council have drastically changed over the last twenty years, to the extent that many of them are not consistent with the statute, and have been invalidated recently by an Appellate Division Court on that basis. The council recently adopted new regulations that establish a separate affirmative obligation on the part of municipalities to produce and finance the construction of affordable housing, through measures that do not rely mainly on land use practices such as zoning, but instead rely heavily on the collection of fees from builders who pass these costs along to market rate home purchasers or to commercial entities with which they contract. The effect of these regulations has been to increase the costs of housing for all purchasers of other than affordable housing units, and to discourage commerce, while placing a lesser emphasis on the zoning practices of municipalities.
d. While New Jersey Citizens, including purchasers of new homes and property taxpayers, may be morally obligated to help those less economically fortunate than them to purchase or rent affordable housing, there is no statutory obligation to do so. Nor is there an identifiable provision in the New Jersey Constitution that would require new home purchasers and property taxpayers to assume the costs of the municipal constitutional obligation to exercise its land use powers in a manner that does not exclude low or moderate income families.
e. There is a need to clearly delineate which actions of a municipality fall outside of the constitutionally delegated powers to municipalities pursuant to paragraph 2, Section VI of Article IV of the New Jersey Constitution. Further, this clear delineation will better guide municipalities in meeting the obligation identified by the court under the Mount Laurel cases, and will circumscribe the regulations of the council so that its regulations provide clear guidance to municipalities in meeting the obligation, but will not permit municipalities to consign the obligation to property taxpayers or purchasers of market rate homes.
2. a. For the purposes of P.L.1985, c. 222 (C.52:27D-301 et al.), the term "exclusionary zoning" shall mean those land use decisions of a municipality that are outside of the legitimate police power and thus are not authorized pursuant to paragraph 2, Section VI of Article IV of the New Jersey Constitution and shall include zoning decisions which make it physically and economically impossible to provide low and moderate income housing in the municipality for the various categories of persons who need and want it; including
(1) zoning in all residential areas within the municipality at a level of density such that a reasonable presumption may be made that no affordable housing units could be produced within such areas at those densities;
(2) zoning in all residential areas within the municipality at a minimum lot size such that a reasonable presumption may be made that no affordable housing units could be produced within such areas;
(3) zoning which prohibits or inhibits the production of multi-family housing;
(4) zoning which provides for an unreasonably high allocation of commercial or industrial use compared to residential use;
(5) withholding approval of variances concerning housing projects which will contain affordable units solely on the basis of dimensional restrictions, such as set-back, height or frontage requirements, when strict compliance with those requirements is not reasonable or necessary; or
(6) withholding of compensatory zoning benefits, such as density bonuses, from developers constructing inclusionary developments or affordable housing within the municipality.
b. Properties which are excluded from a municipality's vacant land inventory, pursuant to the rules of the council, shall not be the subject of exclusionary zoning litigation, and municipal actions concerning such properties shall not be scrutinized under the criteria set forth in subsection a. of this section.
3. a. An action of a municipality that does not fall under the definition of exclusionary zoning as that term is defined under subsection a. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be presumed to be authorized under paragraph 2, section VI, Article IV of the New Jersey Constitution.
b. A municipality that has taken only authorized actions in the exercise of its land use powers in accordance with subsection a. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be deemed to be in compliance with P.L.1985, c.222 (C.52:27D-301 et al.), notwithstanding the fact that sufficient affordable housing has not actually been constructed or produced in the municipality, and regardless of whether that municipality has petitioned the council for substantive certification.
4. This act shall take effect immediately.
STATEMENT
This bill amends the "Fair Housing Act," P.L.1985, c. 222 (C.52:27D-301 et al.), and defines permitted land use practices under paragraph 2, Section VI of Article IV of the New Jersey Constitution, for the purpose of setting a benchmark for municipalities to follow in meeting the constitutional obligation of providing a realistic opportunity for a fair share of its region's present and prospective needs for housing for low and moderate income families. The bill sets forth the following criteria that will be deemed to be outside of the legitimate zoning powers constitutionally delegated to municipalities to regulate land uses:
(1) Zoning in all residential areas within the municipality at a level of density such that a reasonable presumption may be made that no affordable housing units could be produced within such areas at those densities;
(2) Zoning in all residential areas within the municipality at a minimum lot size such that a reasonable presumption may be made that no affordable housing units could be produced within such areas;
(3) Zoning which prohibits or inhibits the production of multi-family housing;
(4) zoning which provides for an unreasonably high allocation of commercial or industrial use compared to residential use;
(5) Withholding approval of variances concerning housing projects which will contain affordable units solely on the basis of dimensional restrictions, such as set-back, height or frontage requirements, when strict compliance with those requirements is not reasonable or necessary; or
(6) Withholding of compensatory zoning benefits, such as density bonuses, from developers constructing inclusionary developments or affordable housing within the municipality.
The bill provides that properties that are excluded from a municipality's vacant land inventory, pursuant to the rules of the council, shall not be the subject of exclusionary zoning litigation, and municipal actions concerning such properties shall not be scrutinized under the criteria set forth in subsection a. of this section. The bill further provides that a municipality that has taken only authorized actions in the exercise of its land use powers in accordance with the bill will be deemed to be in compliance with P.L.1985, c.222 (C.52:27D-301 et al.), notwithstanding the fact that sufficient affordable housing has not actually been constructed or produced in the municipality, and regardless of whether that municipality has petitioned the council for substantive certification.
This bill is a companion bill to SCR No. of 2008, which proposes to amend the New Jersey Constitution to permit the Legislature to define what municipal land use actions will be deemed outside of legitimate police powers to regulate land uses.
